TaxTMI 
TaxTMI 
2019 (2) TMI 1468
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....e not available on records. (iii)Whether on the facts and in the circumstances of the case and in law the Ld.CIT(A), has erred in ignoring the contention in the remand report that no submissions have been made by assessee as regards sundry creditors Chetna Oil Trading Co., Shri Shyam Products and Bhavani Silicate Industries relating to whom amount of Rs. 3,45,23,014/- , Rs. 26,19,800/- and Rs. 55,00,837/- respectively had been added for the reason that reply was not received from the said sundry creditors in response to notice issued u/s 133(6) to verify its transactions with the assessee. (iv)Whether on the facts and in the circumstances of the case and in law the Ld.CIT(A), has erred in ignoring the contention in the remand report that the only submission made as additional evidence filed during appellate proceedings in respect of sundry creditor, Yogi Industries was copy of the Return of Income which was not sufficient compliance considering that the addition made in respect of the said party amounting to Rs. 1,66,31,513/- was on account of non receipt of reply in response to notice issued u/s 133(6) issued to it. (v)Whether on the facts and in the circumstances of the ....
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....e submitted certain documents/evidences to prove the genuineness of the above mentioned parties. However despite the show cause notice dated 19.02.2015 neither the parties from whom the purchases were made nor the assessee could prove the genuineness of the transaction held between the parties and the assessee. The onus lied upon the assessee could not be discharged by the assessee in a given time frame despite the opportunity notice issued from this office. The details of those parties whose genuineness could not be proved and which stands unexplained are as below:- Sr No. Name of the Party Section Date of issue Amount involved Present status 1 M/ Shri Shyam Products 133(6) 10.02.2015 26,19,800 Reply not received. 2 M/s Bhawani Silicate Industries 133(6) 10.02.2015 44,00,837 Reply not received. 3 M/s Vikas Oil Proteins 133(6) 10.02,2015 3,00,02,928 Reply not received. 4 M/s Yogi Industries 133(6) 10.02.2015 1,66,31,513 Returned unserved on 20.02.2015 6 M/s Om Industries 133(6) 10.02.2015 60,24,568 Reply not received 7 Arihant Enterprises 133(6) 10.02.2015 19,3....
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....s claim that the purchases made from the creditor are not genuine. The non submission of confirmations within the given time is not the ground to doubt the genuineness of the transactions of the parties. The appellant has submitted confirmations from the parties, their ledger account and the bank statements for payments. I did not fund any reason not to accept the confirmations from these parties. 9.3 Further, it is interesting to note that the AO has accepted the genuineness of these parties in the appellant's own case in the subsequent AY 2013-14 and 2014-15. Therefore, keeping in view the consistency and the fact that the appellant has submitted necessary confirmations to prove the genuineness of the parties, I did not find any reason not to accept the transactions as genuine, in view of the same Ground No. 3 is allowed. 6. Against the above order, the Revenue is in appeal before us. 7. We have heard both the counsel and perused the records. We have also gone through the precedents relied upon. The ld. Departmental Representative (ld. DR for short) relied upon the orders of the A.O. and also the points raised in the grounds of appeal. 8. Per contra, the ld. Couns....
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....he Act to the AO, which was acknowledged by the AO in his remad report. *Further, the party provided a copy of the Registered AD to the Assessee which suggest/ confirmed the claim of the party that reply was filed. The said copy of the registered AD was submitted to the AO vide letter dated 2 March 2015 and thus the observation of AO that no reply was filed was erroneous. (Refer page 59 to 60 of the paperbook) *The AO had added the purchases made by the Assessee from Shri Shyam Products on the ground that the genuineness of the transaction was not proved either by the Assessee or by the party. *Further, the AO in the remand report has observed that as on 31 March 2012, there was no balance in the sundry debtors account in the books of Shri Shyam Products in the name of the Assessee in respect of purchases made by the Assessee. In this regard, it was submitted that since all the amounts were paid, there was be no outstanding debit balance in the books of Shri Shyam Products. *The Assessee had made these payments for the purchases during year and same could be verified from the copy of ledger account for the FY 2011-12 and extracts of bank statements (Refer page 71 to 80 ....
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....ort. Thereby there was no justification in questioning the genuineness of the party and making an addition when the party had replied to the notice as well as submitted the documents as required by the AO within the due time. 9.Yogi Industries Yogi Industries had provided a confirmation letter dated 23 February 2015 to the AO along with a copy of return of income acknowledgement stating that the Assessee has made purchases from Yogi Industries thereby showcasing the genuineness of the party. (Refer page 129 to 134 of the paperbook) The ledger accounts and the extract of the bank statement substantiating the purchases and payments have actually been made by the Assessee. (Refer page 135 to 150 of the paperbook) In this regard, the contention of department that submission of only return of income was not sufficient and non-receipt of reply to notice under section 133(6) of the Act is grossly erroneous, as the registered AD and reply letter by the party directly submitted to the AO clearly suggested that the notice was duly served on the party and also has been complied with in due time. Accordingly, the claim of AO that the notice was unserved is baseless. Further, ....
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....ply to notice under section 133(6) of the Act to the AO. Further, the party has confirmed that the reply was made to the AO. Further, a copy of the registered AD, substantiating the reply given by the party is enclosed in the compilation. (Refer page 223 to 224 of the paperbook) *The AO in his remand report had stated that no reply has been received from the party. The fact that the party has replied to the AO by way of registered AD clearly suggested the claim of the AO to be false. *The ledger accounts and the extract of the bank statement substantiate that the purchases and payments have actually been made by the Assessee. (Refer page 231 to 268 of the paperbook) Further, the assessee had requested the supplier to share the document which were directly shared to the office of AO. In this regard the supplier has shared the following documents: *Copy of letter filed with AO for intimating submissions in the name of Chetna Traders Pvt Ltd (Refer page 225 to 226 of the paperbook) *Copy of confirmation i.e. ledger account of assessee in books of Chetna Traders Pvt Ltd. (Refer page 227 to 229 of the paperbook) *Copy of letter sent by AO under section 133(6} of the Act (....
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....3(6) of the Act directly to the office of AO, as the same were confidential in nature. On request of the assesse, two parties had given few documents to the assesse which were filed directly with the AO and are submitted before your Honours in the paperbook. 15.Moreover, the Assessee vide letter dated 7 August 2015 had also requested the AO to provide the copy of the reply filed by the parties. However, the AO refused to accept the letter and provide a copy of the replies directly filed by various parties. 16.Accordingly, the Assessee was unable to comment upon the details directly submitted by the parties to the AO. Additional evidence can be filed before the CITfA) which was not available at time of assessment 17.The AO in the remand report had stated that the assesse was not entitled to produce additional evidence before the CIT(A) on the ground that sufficient opportunities were provided to the assesse during the assessment proceedings and additional evidence could have been filed during the assessment. However, it is submitted that the AO had issued notice under section 133(6) of the Act on 19 February 2015 and had given only 6 working days to verify the genuinenes....
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....at disallowance of purchases under section 69C of the Act was not justified merely due to non-filing of confirmations from suppliers especially when assessee had filed certificate from bank indicating that the cheques issued were cleared and there was no defect in assessee's books of accounts. 24.Further, Kolkata Tribunal in case of Selvel Advertising (P) Ltd. (ITA No.657/Kol/2013) dated 1 January 2015 (Refer page 409 to 430 of legal paperbook) it was held that where entire purchases was made by bill and sales tax was paid thereupon and payments to party were made by account payee cheques, addition on account of bogus purchases was not justified. 25.Further, the jurisdictional Hon'ble Bombay high court in case of Nikunj Ex imp Enterprises (372 ITR 619) (Refer page 371 to 373 of legal paperbook) it was held that that if payment was made through banks and books of accounts of assesse was not rejected no addition could be made by treating purchases as bogus. 26.Further reliance is also placed on the following decisions wherein it has been held that where assessee had filed ledger copies, bank statements etc. to establish genuineness for purchases, AO was not justified....
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....e any discussion/addition with respect to the said purchases in AY 2013-14 thereby accepting the genuineness of the parties, (refer order at page 335 to 340 of the paperbook) 33.Further, we wish to submit that the principle of consistency should be followed. It is true that in general, doctrine of 'Res Judicata1 does not apply to Income Tax Proceedings, but the courts have consistently held that on identical facts, separate conclusions in two different years by revenue authorities is not justified. 34.Reliance for the same is placed on the following decisions wherein it was held that as the facts of the case remain the same through different assessment years, mode of assessment cannot be changed without reasons in view of the principle of consistency and accordingly, no disallowance is warranted in the instant year: *Radha Saomi Satsang v CIT (193 ITR 321) (SC) (Refer page 472 to 489 of legal paperbook) *CIT v Berger Paints (266 ITR 99 (SC)) *CIT v Neo poly Pack (245 ITR 492 (Del)) *UOI v Kuomidini Narayan Dalai and Another (249 ITR 219 (SC) *UOI v Satish Panna Lal Shah (249 ITR 221 (SC) *CIT v J.K. Charitable Trust (308 ITR 161 (SC) (Refer page 483 to 4....